Attorneys for Caraballo contend police violated his rights

BRATTLEBORO -- Do law enforcement agencies have the constitutional right to "ping" a cell phone in an attempt to locate a person suspected of a crime?

That's the question attorneys for Frank Caraballo, who has been charged with killing Melissa Barratt in July 2011 in Dummerston, are asking a federal district court judge to decide.

According to court documents filed by Natasha Sen and Mark Kaplan in the U.S. District Court for the District of Vermont in Rutland, by pinging Caraballo's phone on July 29, 2011, police "indiscriminately searched everywhere ... without any link between Mr. Caraballo's location and his alleged criminal activity. This is exactly the type of general exploratory search that the Fourth Amendment prohibits."

The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Caraballo stands accused of shooting Barratt, then 31, in the woods off of East West Road near the Dummerston Covered Bridge. According to court documents, Caraballo suspected Barratt of stealing drugs from him. He and Joshua Makhanda-Lopez were stopped by police on Route 10 at the Springfield/Chester town line after the vehicle Makhanda-Lopez was driving was located by tracking Caraballo's cell phone.

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Following the arrest, the two were taken into custody, the vehicle searched and evidence seized.

The crux of the documents filed in court on March 13 is the contention that by pinging Caraballo's cell phone, police "surreptitiously converted" it into a tracking device without probable cause.

"Pinging cell phones allows the government to do exactly the same thing as placing a GPS device on a vehicle, without the hassle of physically installing a device," wrote the attorneys.

But pinging a cell phone is even more intrusive than attaching a GPS device to a vehicle because a cell phone is often carried into private places -- described as constitutionally protected areas -- police cannot enter without a search warrant.

And according to court documents, while police were attempting to track him down, Caraballo did in fact enter into private spaces, wrote Sen and Kaplan.

"This case presents a question left unanswered in the (United States) Supreme Court's 2012 opinion on electronic surveillance: whether electronic monitoring, without a physical trespass, can be an unconstitutional invasion of privacy," they wrote.

In that case, the Supreme Court held that warrantlessly installing a GPS device on a car in order to monitor its movements violated the Fourth Amendment rights of the car's driver.

"Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements," wrote Justice Sonia Sotomayor.

Sen and Kaplan contend that Caraballo had "a reasonable expectation of privacy" and police never sought or obtained a search warrant to get his real-time location information by asking Sprint to ping his phone.

The federal government is contending that Sprint provided the information under the voluntary disclosure provision of the Stored Communications Act.

But obtaining real-time information is not a stored communications, such as an e-mail, noted Sen and Kaplan, thus police violated the Fourth Amendment when they pinged Caraballo's phone, using "a technological shortcut to create a trail where none had existed."

"(W)ithout judicial oversight, covertly surveilling citizens through their cell phones, a device that most cell phone users would never suspect is being used to follow their every movement, is simply ‘creepy and un-American' ..." they wrote.

While it might be argued that exigent circumstances -- such as in a pursuit of a fleeing subject, when there is a chance that evidence might be destroyed or there is imminent danger to a person's life -- could allow the pinging of a cell phone, there were no such circumstances in this case, wrote the attorneys.

"The fact that the Drug Task Force investigating Mr. Caraballo's activities over the course of the summer had not arrested him over months supports a finding that Mr. Caraballo's activities were not considered an immediate threat or danger to the community requiring his arrest," they wrote.

Sen and Kaplan are also asking the court to suppress statements made by Caraballo following his arrest. He was taken to the Rockingham Barracks of the Vermont State Police where he was placed in a holding cell without food or water for five hours prior to interrogation. According to the documents filed by Sen and Kaplan, prior to his questioning, Caraballo asked to place a phone call to an attorney, but his request was denied.

Caraballo, who is currently incarcerated at the Federal Correctional Institute in Ray Brook, N.Y., has been charged with conspiracy to distribute cocaine, possession of a firearm in furtherance of a drug trafficking crime during which the use of the firearm caused the death of Barratt, and being a felon in possession of a firearm.

He was recently sentenced to 16 years in federal prison for the distribution of crack cocaine.

Makhanda-Lopez has pleaded guilty in federal court to distributing drugs and possessing a firearm and is awaiting sentencing.

In a separate filing, Sen and Kaplan are asking the court for a change of venue because they believe their client can't get a fair trial due to media coverage of Barratt's death.

In the 19-and-a-half months since Caraballo's arrest, they noted, there have been more than 80 reports about the case in newspapers, blogs, and online sources and 26 television reports.

"A large number of print news reports state as ‘fact' facts that will be at issue in the trial of this case," wrote Sen and Kaplan. "The most problematic of these is the repeated assertion that Mr. Caraballo shot Ms. Barratt, with no qualification that this is merely an allegation that must be proved."

In addition, there are a number of reports that describe Caraballo's prior criminal history.

"These are highly prejudicial statements whose admissibility at trial is questionable, but potential jurors have been exposed to all of it."

Because of the small jury pool in a state such as Vermont, the court should move the hearings to another location, concluded Sen and Kaplan.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.

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